On April 10, Mr Justice Qazi Faez Isa addressed the special National Constitutional Convention held in the Hall of the National Assembly, where all judges of the Supreme Court had been invited, besides politicians from the opposition. Of them, only Mr Justice Isa was courteous enough to attend the occasion, which was to mark the golden jubilee of Pakistan’s Constitution, which was ratified on 10 April 1973.
Mr Justice Isa, senior puisne judge, who would soon become the next Chief Justice, represented the SC and expressed its determination to stand by the constitution. It was heartening to see Mr Justice Isa delivering a speech. He had brought along a pocket-sized copy of the constitution to vent his thoughts.
With waving the minuscule book, Justice Isa proclaimed the supremacy of the constitution, which was framed by the then Constituent Assembly. It was the constitution that gave birth to the SC and not vice versa. If only this point were understood by the SC, which transgressed the prescribed constitutional limits in May 2022 by misinterpreting Article 63A. The misconstruction is considered tantamount to rewriting the constitution.
With waving the tiny book, Mr Justice Isa also proclaimed the ownership of the constitution, retrieving it from the scope of being an orphan, disowned by the higher judiciary in the hour of crisis prompted and exploited by military dictators. The SC remained notorious for being timid and craven to the foray of the military into running the country by extending the khaki adventurers all possible legal assistance. As per practice, around his unconstitutional step, a military dictator preferred to construct a semblance of a political milieu through assembling together a hodgepodge of opportunist politicians and complaisant religious clerics who would pass a constitutional amendment (such as the 8th Amendment in November 1985 and the 17th Amendment in December 2003) to extend constitutional legitimacy to the act of the abrogation of the constitution. Both instances are the reasons why the khaki keeps on looking for prey ever willing to be sacrificed at the altar of one emotive (nationalistic or religious) slogan or the other.
Nevertheless, the ownership of the constitution yields Mr Justice Isa’s two resolves: first, no misinterpretation of the constitution would be done; and second, no submission would be offered to any military dictator.
In his address, Justice Isa regretted that, in 1955, the Federal Court of Pakistan (the predecessor of the SC), had ruled in favour of the Governor General Ghulam Muhammad who had dismissed the First Constituent Assembly of (the Dominion of) Pakistan in 1954. The decision heralded the advent of the Doctrine of Necessity. By doing so, it was not only Maulvi Tamiz-ud Din, who was the President (or the Speaker) of the Assembly (representing East Bengal), lost the case as a litigant, but it was also united Pakistan which lost the case of its unity.
The doctrine spawned in later years, marring the body politic. The NA kept on searching for sovereignty. Either a military dictator or a bench of the SC kept denying freedom and democracy to the Pakistanis. The first fatality was the dismemberment of the country on 16 December 1971.
In short, Justice Isa’s visit was a step towards bridging the gulf of differences, bordering on acrimony, existing otherwise between the SC and the NA. Any attempt of mutual cooperation is bound to open the vista for legislation to improve the SC’s functioning and image.
In his address, Justice Isa said, “Sometimes, we hate each other more than we hate our enemies”. This statement was applicable equally to all including politicians and the judges.
A few years ago, a campaign to tarnish the image of Mr Justice Isa was launched just because, in February 2019, he delivered a judgement questioning the clandestine role of Pakistan’s prime intelligence agency (ISI) in organizing demonstrations by facilitating religiously motivated people against the then sitting government in November-December 2017. On camera, men in uniform holding senior positions were found offering financial assistance (cash handouts) to the protestors of the Tehreek-e Labbaik Pakistan. Theirs was an act of transgression, overstepping the limits of mandate.
Instead of doing its mandated work, the intelligence agency was involved in working against the sitting government. The capture was red-handed. In retaliation of his decision on the agency’s work, the agency turned against him and all hell broke loose against him. The intelligence agency cooked up a case against Justice Isa to exclude him from the SC, as if he were an enemy of the country.
The point is simple: an intelligence agency is not meant for fomenting troubles for a sitting government. Neither the armed forces nor the intelligence agencies are mandated to indulge themselves in politics, or to engage with the media to make and break governments. It was also found out that other countries (especially the developed countries such as Canada, Australia, Norway, Great Britain and the USA) did not maintain secrecy about the mandate of their intelligence agencies. People have a right to know who is manipulating the system to achieve what objectives. The question is this: what the role of a judge otherwise is, if not to make a sound judgement?
In his discourse, Mr Justice Isa also appreciated the mention of fundamental rights, as enshrined in the constitution. Moreover, he valued Article 19-A (right to information). If people guard their fundamental rights and seek information on what is happening in the government, there would be more (day to day) accountability of the government, instead of people waiting for the electoral day to react. The right to information entitles all Pakistanis to know which government servant is holding how many assets of what worth. The principle is applicable equally, and without exception, to serving judges, bureaucrats, army officers and legislators. The Federal Board of Revenue is not supposed to preclude people’s right to seek information on the assets of those who draw salaries from the taxpayers’ money, the national kitty.
In short, Justice Isa’s visit was a step towards bridging the gulf of differences, bordering on acrimony, existing otherwise between the SC and the NA. Any attempt of mutual cooperation is bound to open the vista for legislation to improve the SC’s functioning and image.
